The Administration of an Estate with Firearms

November 10, 2014 Ian Hull Executors and Trustees, General Interest 0 Comments

Recently at the Practice Gems: Probate Essentials 2014 program held by the Law Society, Jordan Atin of Hull & Hull LLP and Michael Press of the Toronto Police Service presented a paper on firearms as estate assets.  In their presentation, Mr. Atin and Mr. Press outlined the unique challenges faced by Estate Trustees when firearms are amongst the Deceased’s assets.

Firearm regulations in Canada, namely the Firearms Act and Criminal Code, generally require that anyone in possession of, or intending to acquire a firearm, hold a licence permitting that individual’s possession or acquisition.

Specifically, section 91(1) of the Criminal Code states that  “…every person who possesses a firearm without being the holder of (a) a licence… (b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it…” commits an offence.

Therefore, an estate trustee, who automatically assumes possession of the deceased’s assets upon the death of a testator, may suddenly find him/herself in possession of firearms without the requisite licence and/or required registration certificate, and without a basic understanding of how the Canadian firearm regulations apply to them.

Thankfully, a special exemption exists under, section 91(4)(b) of the Criminal Code, that in most cases will allow an estate trustee to possess or otherwise deal with the deceased’s firearm(s) without a licence for the purpose of administering the estate.

Specifically, section 91(4)(b) states that section 91(1) will not apply to “ … (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by operation of law and who, within a reasonable period after acquiring possession of it, (i) lawfully disposes of it …”.

The phrase, “by operation of law”, generally includes the automatic transfer of legal possession from the deceased to the appointed executor, at the moment of death. In effect, section 91(4)(b) grants the estate trustee the same rights the deceased had to possess firearms, so that the estate trustee may settle the estate in an orderly manner, and with minimum delay.

However, there are exceptions to the application of this provision, for example, where the deceased did not possess a valid license or registration certificate at the time of death, or where the appointed estate trustee is under a court-ordered prohibition from possessing firearms.

The RCMP has published a helpful fact sheet to assist those trying to understand the regulations and their obligations as estate trustees. However, in order to ensure compliance, it is recommended that an estate trustee who finds firearms among the deceased’s estate assets, fill out an Authorization Form 6016 – ‘Declaration of Authority to Act on Behalf of an Estate’ and submit it to the RCMP Canadian Firearms Program (the “CFP”) to receive further information and guidance. The CFP can also be contacted by phone at 1-800-731-4000.

Thank you for reading,

Ian Hull

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